Tiruchirappalli North Sarvodhaya vs The Secretary To Government on 8 September, 2010

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Madras High Court

Tiruchirappalli North Sarvodhaya vs The Secretary To Government on 8 September, 2010

2.The petitioner is the Tiruchirappalli North Sarvodhaya Sangam represented by its Secretary. They have come forward to challenge the order of the State Government viz., the first and second respondents, dated 17.12.2008, in refusing to consider the exemption application made by the petitioner Sangam dated 11.05.2007 from the application of the Minimum Wages Act, 1948.

3.The petitioner sought for exemption under Section 26 of the Minimum Wages Act. Under Section 26 of the Minimum Wages Act, the Government can grant exemption from the application of the Minimum Wages Act subject to certain conditions. It is a claim of the petitioner that they are not profit making organization registered under the Societies Registration Act and it is only carrying out the charitable activities. The said Sangam is founded on the basis of the Gandhian ideology and therefore, they should have been granted exemption from the provisions of the Act. It is further contended that they are not indulging in any manufacturing activity and their activities are connected with villagers and the poor people and the same will come under the definition of cottage industries and therefore, the Act will not apply.

4.It is unnecessary to go into the question whether the provisions of the Minimum Wages Act are applicable to the petitioner institution or not. The fact that the petitioner had applied to seek exemption from the provisions of the particular Act by itself proves that the provisions of the Act will apply to the petitioner Sangam. The petitioner cannot contend both ways, on the one hand the Act will not apply, on the other hand they should seek exemption from the provisions of the Act. They cannot blow hot and cold in the matter of application of an enactment. The Supreme Court vide in the judgment in State of Tamil Nadu, represented by the Secretary, Housing Department, Madras Vs. K.Sabanayakam and another, reported in JT 1997 (9) SC 316, 1998(1) SCC 318, has held that the fact that an exemption is sought for from a particular labour enactment by itself proves that the provisions of the Act will apply to such an institution. In the very same judgment, the Supreme Court has also held that while the employer seeks for exemption from the labour enactment, they should necessarily make the workmen also party to such an exemption application, because ultimately it is they, who will be affected by the grant of such an exemption.

5.The first question regarding the non-application of the Act must fail. The second question, since they are doing charitable work based on the Gandhian ideology, whether the provisions of the Act are to be exempted also cannot be countenanced by this Court. A payment of minimum wage is only rock bottom of the wage scale and no employer can be allowed to pay less than the minimum wage, because the right to carry on business or trade is subject to reasonable restrictions and if the employer did not pay the minimum wage, as contemplated under Law, he has no right to exist.

6.The Supreme Court vide the judgment in Chandra Bhavan Boarding and Lodging, Bangalore, and another Vs. The State of Mysore and others, reported in AIR 1970 S.C. 2042 has held that an employer, who do not pay the minimum wage, has no right to exist. On the question that whether the particular institution is involved in charitable activity or they indulge in social service by itself can be a ground for grant of exemption, also came to be considered by the Supreme Court vide the judgment in Sanjit Roy Vs. State of Rajasthan, reported in (1983) 1 SCC 525. In paragraph No.4 of the said judgment, dealing with the exemption obtained by the Rajasthan Government in relation to the employment in famine relief work, the Supreme Court negatived the contention made by the Rajasthan Government. It was also held that the fact that certain relief works carried out cannot be a ground to get exemption and the non-payment of minimum wage would amount to forced the Labour which would be violative of Article 23 of the Constitution of India. In the light of the same, the Rajasthan Act was struck down. Therefore, it is necessary to extract paragraph No.4 of the said judgment reported in (1983) 1 SCC 525 which reads as follows;

"4. If this be the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act insofar as it excludes the applicability of the Minimum Wages Act, 1948 to the workmen employed in famine relief works can be sustained. Article 23, as pointed out above, mandates that no person shall be required or permitted to provide labour or service to another on payment of anything less than the minimum wage and if the Exemption Act, by excluding the applicability of the Minimum Wages Act, 1948, provides that minimum wage may not be paid to a workman employed in any famine relief work, it would be clearly violative of Article 23. The respondent however contended that when the State undertakes famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted. When the State undertakes famine relief work it is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but, nonetheless, it is work which enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State to the affected persons in order to provide relief to them against drought and scarcity conditions nor is the work to be carried out by the affected persons worthless or useless to the society so that under the guise of providing work what the State in effect and substance seeks to do is to give a dole or bounty to the affected persons. The court cannot proceed on the basis that the State would undertake by way of famine relief work which is worthless and without utility for the society and indeed no democratic State which is administered by a sane and sensible government would do so because it would be sheer waste of human labour and resource which can usefully be diverted into fruitful and productive channels leading to the welfare of the community and creation of national asset or wealth. It is difficult to appreciate why the State should require the affected persons to provide labour or service on work which is of no use to the society, instead of simply distributing dole or bounty amongst the affected persons. There is no reason why the State should resort to such a camouflage. The presumption therefore must be that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the State exacts labour or service from the affected persons for carrying out such work, for example, a bridge or a road, which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the affected persons. The State cannot be permitted to take advantage of the helpless condition of the affected persons and extract labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23 and the Exemption Act insofar as it excludes the applicability of the Minimum Wages Act, 1948 to workmen employed on famine relief work and permits payment of less than the minimum wage to such workmen, must be held to be invalid as offending the provisions of Article 23. The Exemption Act cannot in the circumstances be relied upon by the respondent as exempting it from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj-Harmara Road.

7.In the light of the above, there is no case made out to entertain the present writ petition. Hence, the writ petition stands dismissed. Consequently, connected miscellaneous petition stands closed. There is no order as to cost.

gcg To

1.The Secretary to Government, Labour and Employment, Government of Tamil Nadu, Fort St. George, Chennai.

2.Joint Secretary to Government, Labour and Employment, Government of Tamil Nadu, Fort St. George, Chennai.

3.Deputy Commissioner of Labour, Authority under Minimum Wages Act, Tiruchirappalli.

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